Javarayappa vs Venkataramappa and Others

Ravi V. Malimath, J.—Aggrieved by the concurrent findings recorded by both the Courts below in decreeing the plaintiff''s suit for injunction the defendant No. 1 has filed this appeal.

The parties would be referred to as per their rank before the trial court.

The case of the plaintiff is that they are in possession and enjoyment of the suit schedule property bearing Sy. No. 39/2 measuring 1.21 acres situated at Harohalli. He has purchased the same in terms of the registered sale deed dated 8-5-1990. Consequently, the katha of the property was changed to his name and he has been paying the land revenue as per revenue records. The defendants have no right title or interest and being the owners of the adjoining land bearing Survey No. 38 attempted to interfere with the plaintiff''s peaceful possession and enjoyment of the property. In the year 1992, the plaintiff got the lands surveyed and a sketch was prepared showing the plaintiff''s possession over the entire extent of land. At the time of survey the 1st defendant was also present. The survey does not indicate the existence of a pathway. Notwithstanding the same, the defendant continued to interfere with his possession. That he illegally removed the eucalyptus trees. A police complaint was lodged against him. Since he continued to disturb the plaintiff, the plaintiff filed a suit seeking permanent injunction against the defendants to restrain them from interfering with the peaceful possession and enjoyment of the suit schedule property. On summons being issued the defendants filed separate written statements. The 1st defendant stated that he denies the ownership and possession of the suit schedule property It is his case that he is the owner of the land bearing Survey No. 38 measuring 6.38 acres and is in possession of the same eversince the date of sale, that is from 15-3-1971. That there is no pathway from Harohalli to Varadapura which passes through the plaint schedule land and also the adjoining lands. The width of the pathway is 8 1/4 feet and the same is in existence for the last 100 years. That subsequent to the survey, the plaintiff is preventing not only the defendants but other villagers from using the road. That there are no trees existing on the suit schedule property. Hence he pleads for dismissal of the suit. The 2nd defendant by filing a separate written statement denied that the plaintiff is the owner in possession of the property but claimed that he has purchased the land bearing Sy. No. 40/1 measuring 1.30 acres and is in possession since the date of sale that is from 10-6-1981. That the plaintiff has filed the suit seeking to knock off his property and hence the suit be dismissed. On the basis of the pleadings the trial court framed the following issues:--.

"1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of the suit?

Whether the plaintiff further proves that alleged interference by the defendants into his possession?

Whether the plaintiff is entitled to the relief sought for?"

In support of the case of the plaintiff, the plaintiff was examined as P.W.1 and 2 other witnesses were examined and got marked 12 documents. On behalf of the 1st defendant one Javarayappa was examined as D.W.1 and marked 22 documents and another witness was examined as D.W.2. Issues 1 to 3 were held in affirmative. The trial court held that the plaintiff has proved his possession over the suit schedule property and consequently decreed the suit and directed the defendants not to interfere with the peaceful possession and enjoyment of the suit schedule property. Aggrieved by the same, the defendants filed a Regular appeal which was dismissed. Hence, the present Second appeal.

By the order dated 22-7-2011 the appeal was admitted to consider the following substantial question of law:--

"Whether both the Courts below are legally correct in refusing to consider Ex. D15 the village map prepared and given by a Public Authority on the ground that the author of document was not examined?"

The learned counsel for the appellant contends that the impugned Judgment & decree of both the Courts below are erroneous and interference is called for. That the Courts below failed to consider the village map in terms of Ex. D-11 as well as the subsequent village map Ex. D-15. That both the maps clearly show that there is a village pathway in the suit schedule property running from the suit schedule property. That the same is running from Harohalli to Varadapur. That it has been in existence for the last 100 years. Only because Ex. P-7 Mahazar and Ex. P-8 the sketch have been prepared based on the request of the plaintiff''s for demarcation of the land, the same cannot be held against the defendants. That what was stated in the survey was the fixation of the boundaries. Therefore, the finding recorded by both the Courts below relying on Exs.P-7 & P-8 and in not appropriately considering Exs.D-11 and D-15, has therefore has lead to miscarriage of justice. Accordingly, the substantial question of law be answered in his favour and the suit be dismissed.

On the other hand, the learned counsel appearing for the plaintiff-respondents defends the impugned order. He contends that both the Courts below have rightly decreed the suit of the plaintiff. That the defendant himself was a signatory to Ex. P-7 and P-8 the sketch which does not disclose the village pathway. Therefore. the claim of the defendants therefore cannot be accepted. Hence, he pleads that the Courts below were right in decreeing the suit.

Heard learned counsels and examined the records.

The case of the plaintiff is that he is the owner in possession of the suit schedule property bearing Sy. No. 391 measuring 1 acre 22 guntas as per schedule. That he has purchased the same in terms of the registered sale deed dated 8-5-1990. The same is not in dispute nor is it disputed that the defendants are in possession of the neighbouring lands. The case of the plaintiff is that there is no pathway that runs through his land or that a pathway exists between Harohalli to Varadapura. That Ex. P-7 of the year 1999 is a mahazar drawn by the Survey Department on the request made by the plaintiff seeking fixation of the boundaries. While so doing, Ex. P-8 has been prepared and the boundaries of the property of the plaintiff has been identified. Ex. D-8 the sketch does not show that there is any pathway. The defendants are signatories to the same. Therefore, it is pleaded that in the absence of any pathway, the case of the defendants cannot be accepted to the contrary. The Courts below while considering the same have accepted the plaintiff''s plea that since the defendants were signatories to Ex. P-7 they cannot now contend that there was a pathway.

Ex. D-11 is a village map as well as Ex. D-15 another village map. Ex. D-11 is prepared much prior to the initiation of the suit. In Ex. D-5 namely, the village map, it is narrated that there is a village pathway running through the Survey Numbers, 38, 39/1, 39/2,40, 80 81, 57, 58, 59 and 61 between Harohalli and Varadpura. The same naturally cannot be disputed by the defendants.

However, what the trial court has held is that the 1st defendant did not produce any evidence as to the actual width of the road as claimed by him and to the nature and the purposes for which it is used. Therefore, the mere production of the village map is not sufficient to hold that there is a public way measuring 8 1/4 feet and it passes through the suit schedule property.

The factum of the village pathway existing in Exs.D-11 and 15 is a matter of fact. It is a village map. It clearly narrates the existence of the pathway between Harohalli and Varadapura running through the survey Numbers as mentioned in Ex. D-15. As rightly held by the appellate court, it does not indicate the width of the pathway as to whether it measures 8 1/4 feet or not. But what it clearly indicates is that there is a pathway running between these two villages. Therefore only because there is no material to show as to the width of the road or as to why the road is being used, the trial court committed an error to hold that such a road does not exist. The finding of the trial court therefore runs diametrically opposite to Exs.D-11 and D-15 the village maps. Moreover, the finding of the trial court that since the width of the road has not been stated and the usage of the road has not been narrated, the same cannot be accepted, is an error committed by the trial court.

The appellate Court while affirming the view of the trial court was of the view that Ex. D-15 cannot be accepted since the author of Ex. D-15 has not been examined. That any responsible officer has also not been examined. Reliance was placed on Exs.P-7 to 9 to hold that since the defendant is a signatory to the same, he cannot now plead the contrary. I''am of the considered view that the reasoning assigned by the appellate Court on Ex. D-15 is unacceptable. The existence of Exs.D-11 and 15 being in existence much before filing of the suit, is undisputed. The existence of the pathway much before filing of the suit is borne out from the records themselves. Therefore it cannot be said that Ex. D-11 or Ex. D-15 cannot be accepted only because the author has not been examined. All of them are village maps furnished by the respective parties. All of them indicate the existence of a village pathway. Therefore the findings recorded by the Courts below requires to be reversed.

With regard to the interpretation of Ex. D-7 & 8 is concerned the learned counsel for the plaintiff relies on the evidence of defendant No. 1. After the suggestion was put to D.W.1 by the plaintiff with regard to as to whether there existed a road running from the schedule property the defendant to such a suggestion in the cross-examination recorded on 10-3-2003 the defendant witness replied by saying Ves'', namely that the said pathway runs through the suit schedule property. In view of the very suggestion by the plaintiff himself, it is an another issue that has to be held in favour of the defendants that the pathway exists between Harohalli to Varadpura as evidenced in Ex. D-11.

So far as the findings of the Courts below on Issues & 2 is concerned, I''am of the considered view that what was sought for was with regard to the fixation of the boundaries of the plaintiff''s property. Therefore, what was done by the surveyor was to fix the boundaries on the plaintiff''s property. That was his only assigned job. It was not his jurisdiction to map out whether the pathway exists or not. His duty was only to make out the relevant boundaries of the property. There was no dispute by the defendants because what was being marked was the boundary of the plaintiff''s property. The survey was not ordered to find out whether the pathway exists or does not exist. Therefore both the Courts below fell in error in misreading Ex. P-8. The defendants having signed to Ex. D-7, was to accept the survey so far as boundary of the plaintiff''s property is concerned and not anything else. Therefore both the courts below have wrongly interpreted Exs.P-7 & 8 to hold that the documents show that there is no pathway. The negative finding recorded by both the Courts below are therefore erroneous. Therefore the substantial question of law is answered by holding that the Courts below were legally incorrect in misreading Ex. P-15 the village map prepared by a public authority only because the author was not examined, while decreeing the suit of the plaintiff. The substantial question of law is accordingly answered.

The decree sought for by the plaintiff is with respect to his suit schedule property. There is no dispute with regard to his title or possession. Therefore, while decreeing the suit of the plaintiff it would only be appropriate that the suit be decreed for the suit schedule property claimed by him excluding the pathway running through his land. The material on record justifies the plea of the plaintiff, that not only is he the owner but also in exclusive possession of the suit schedule property excluding the pathway, since the pathway has been in existence for a very long time. Therefore the suit cannot be decreed based on Ex. P-8 but necessarily has to be decreed based on Exs.D-11 and D-15. Therefore the Judgment & decree passed by the trial court and the Judgment & decree passed by the first appellate court are modified. The suit of the plaintiff is decreed by excluding the pathway as mentioned in Exs.D-11 and D-15.

Consequently, the appeal is allowed. The Judgment & decree dated 28-3-2005 passed in O.S. No. 132/2004 on the file of the Civil Judge (Junior Division), Bangarpet and Judgment and decree dated 5-10-2010 passed in R.A. No. 37/2005 on the file of Addl. Senior Civil Judge and JMFC, KGF, are modified. The suit of the plaintiff is decreed excluding the pathway as shown in Ex. D.11 & D.15.

The parties to bear their own costs.